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2019 (12) TMI 115

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..... nt on account of difference of opinion in the Bench comprising of Hon’ble President and Hon’ble Member (Technical). HELD THAT:- The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm×10cm and is a window envelope, whereas the second one is of 27cm×12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. Also the postal charges levied for speed post of both letters are different, the second one with higher charge the weight being 90gms, therefore, the order dated 29.08.2017 could not have been dispatched in the envelope containing speed post no. ER9241875719IN, for which minimum speed post charge is levied. The learned Commissioner (Appeals) on t .....

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..... t of verfication conducted and whether it is ascertained the order dated 29.8.2017 remained to be dispatched at the Range office or at the Division office itself; the affidavit also does not disclose about the lapse relating to delivery of the Order - it remains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant is concerned, they should not made to suffer as the order has been communicated only on 06th August, 2018, hence there is no delay in filing the appeal. The findings and conclusion of the Hon’ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944, is agreed upon - the impugned Order deserves to be set aside and the matter be remanded to the learned Commissioner (Appeal) to decide the issue on merits. - Excise Miscellaneous Application No. 50551 of 2019 In Excise Appeal No. 50574 of 2019 - Miscellaneous Order: 50857/2019 And Final Order: 51577/2019 - Dated:- 2-12-2019 - HON BLE MR.JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. BIJAY KUMAR, .....

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..... dated 8 June, 2018 holding that the Appellant had paid excess Oil Cess during the period March 2016 and May 2016 and that the Appellant had not been unjustly enriched. It is further stated that after the Appellant received the said order dated 8 June, 2018, it submitted an application dated 2 August 2018 for payment of the amount under the aforesaid order and also requested that the application filed by the Appellant seeking refund for the subsequent period be also decided. The Appellant claims that as the Assistant Commissioner informed the Appellant that the said refund claim had already been rejected, the Appellant submitted a letter on 3 August 2018 for supply of the order and it is, thereafter, that the Assistant Commissioner supplied the order dated 29 August 2017 to the Appellant by hand on 6 August 2018 and also sent the order by speed post on 6 August 2018, which speed post was received by the Appellant on 11 August 2018. The Appellant filed an appeal before the Commissioner (Appeals) on 4 September, 2018 within a period of sixty days from the date of communication of the order which is the limitation stipulated in Section 35 (1) of the Act, but the appeal was dismissed b .....

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..... ed 01.09.2017 has been distributed to receiver on 12.09.2017 by the Branch Post Office, Bandra (Kawas). 6.2 I find that the Appellant contested that they were informed vide dated 02.08.2018 by the adjudicating authority that the matter has been decided and Order rejecting the refund claim has already been issued. Since, the appellant was not in receipt of the said order, a request was made by the appellant vide letter dated 03.08.2018 seeking attested copy of the said Order, which was supplied vide letter date 06.08.2018. On receipt of the Order-in-Original on 06.08.2018 the appellant being aggrieved filed this subject appeal on 04.09.2018. Hence they have filed appeal within time limit of 60 days from the receipt of the impugned order. 6.3 I find that Order-in-Original No. 28/2017-R dated 29.08.2017 has been sent through speed post No. ER92418751IN dated 01.09.2017 as per procedure prescribed under Section 37C of Central Excise Act, 1944 and same has not been returned back as per adjudicating authority s office record. Further, in this regard this office has made correspondence vide letter dated 03.12.2018 & 27.12.2018 with Postal Department, Jodhpur and they have confirmed vi .....

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..... e service of the original order upon the Appellant. Grounds D and E that mention the aforesaid facts are reproduced below: D. On checking internally with the Appellant s staff, the Appellant found that it had not received any consignment with Speed Post No. ER924187517IN dated 01.09.2017 (received on 12.09.2017), rather it had received a Departmental communication vide Speed Post No. ER924187517IN which might be the correct tracking number (this number is similar to the number provided in the Impugned Order-in-Appeal). However, the envelope received vide Speed Post No. ER924187517IN contained letter C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 dated 01.09.2017 issued by the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Headquarters 12/3, Civil Lines, Residency Road, Jodhpur. This letter dated 01.09.2017 has been issued by altogether different range office and relates to altogether different case of the Appellant. The Order-in-Original dated 29.08.2017 was issued vide F. No. V(Rfd.)18/JDR/121/2017- 1552-56 by Assistant Commissioner, Central Tax, Division-B, 4, Narpat Niwas, Near Officers Mess, Air Force Road, Ratanada, Jodhpur. The envelope for Speed Post No. ER924 .....

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..... y name was written in Hindi except Vedanta limited which was written in English and M/s Vedanta Limited was written with a different pen when compared with other entries on the said page. 2. That the Speed Post Register contained the Speed post No. series from 28/08/2017 to 13/09/2017 starting from No. ER90…. except the Speed Post No. mentioned under dated 01/09/2017 for Vedanta Limited which was starting from series ER924….. It was the sole speed Post No. from the series ER924. 3. That the entry under Dated 01/09/2017 appeared to be inserted since the Speed Post No. of the above letter appears on the same line, while for all other entries the Date was mentioned on the top in separate line and below the name of party, File No. followed by Speed Post No. is mentioned. 4. That the Page No. on the speed post register were overlapped. 5. That the Speed Post register was not authenticated. With regard to Dispatch Register- 1. That few pages were torn from the end of the page. 2. That under Sl. No. 1555 whitener was found used under column stamp used which does not appear on the copy supplied initially under RTI reply. 3. That on request, the officers could not produce any .....

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..... ax, Range-B bearing Speed Post No. ER956930766IN, containing the Order-in-Original which the Appellant received on 11 August, 2018, though it was earlier received by the Appellant by hand on 6 August, 2018. 3. Learned Counsel for the Appellant has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 under the Right to Information Act and which are contained at page No. 499 and 500 of the Appeal. 4. A perusal of the speed post register indicates that as against the date 31 August, 2018, there are two entries and the name of the sender is mentioned with Speed Post No. ER902033584IN and No. ER902033598IN. Likewise, the entries of date 4 September 2017 bear Speed Post Nos. ER90206336861IN, ER9033505IN, ER902034718IN and ER 0902034695IN. 5. It is, however, seen that as regard entry of date 1 September, 2017, the name Vedanta Limited in English is written with Speed Post No. ER824187517IN. 6. From the aforesaid, it is contended by the learned Counsel for the appellant that the entry of Vedanta Limited against date 1 September, 2017, has been subsequently inserted. It is suggested that this entry instead of indicating the name .....

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..... ; Sh. D.K. Nayyar, dispatch register, speed post register and the statement made by the dealing assistant, I solemnly affirm and state as under:- With regard to Speed Post Register:- 1. Name of the assessee was written as M/s Vedanta Limited in the Order in Original No. 28/2017-R dated 29.08.2017 and the same has been copied by the dealing assistant in the speed post register. The same practice can be seen on other pages also, for example on page No. 72 and 79, where the name of the assessee is again in English. 2. The dealing hand has intimated that the said order in Original was given by hand to the concerned officer of Balotra range for service to the assessee. The said Order was then sent by Balotra range through Speed post ER924187517IN, which was then informed to dealing hand, who mentioned the same number in the Speed post register of the division office. It is submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses. 3. On examination of the speed post register it can be seen that the number of lines skipped in the Speed post register are not fixed as the same are 2 or 3 or 4 at different pages. It may also be due to the .....

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..... 517IN on 1 September, 2017 was a letter dated 1 September 2017 with No: C.No.: CE-5/02/Vedanta/Royalty/17-18/1740. This envelope containing the said letter was received by the Appellant on 12 September 2017. The envelope was sent by the Superintendant, Central Goods and Service Tax, Range II (Balotra), Jodhpur (Rajasthan) in the Range Office with subject licence granted by Government to a company to exploit a natural resource is a taxable service and hence liable for service tax . The order dated 29 August, 2017 was not contained in the envelope sent on 1 September, 2017 by Speed Post No. ER924187517IN. (iii) A bare perusal of the speed post register would indicate that the entry relating to 1 September 2017 has been subsequently inserted between the date 31 August 2017 and 4 September 2017. All the other entries preceding 1 September 2017 and post 1 September 2017 contain speed post nos. which begin with ER90.... Only the entry relating to 1 September 2017 begins with speed post no. ER92...which clearly shows manipulation in the speed post register. There is a gap of at least three lines in the entries made in the speed post register when a date changes and gap of one line in betw .....

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..... maintained proof of delivery of the service of the order in accordance with Section 37C of the Act, particularly when the limitation provided for in Section 35(1) of the Act requires an appeal to be filed within sixty days from the date of the communication of the order, but that was not done. 14. Learned Authorised Representative of the Department has, however, supported the impugned order on the basis of the statement made by the Assistant Commissioner in the affidavit that has been filed. Shri Mohan Das, Superintendant in Division- C, Jodhpur who has brought the speed post register and the dispatch register, however, stated that since the speed post stickers were not available in the post office from where letters by speed post were sent by the Division Office, the envelope containing the order was sent to the Balotra Range Office for dispatching it to the Appellant. 15. The submissions advanced by learned Counsel for the Appellant and the learned Authorised Representative of the Department have been considered. The original speed post register, the original dispatch register and the letter dated 1 September, 2017 sent by the Superintendant in the Central Goods and Service Tax, .....

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..... ing to the Commissioner (Appeals), the order dated 29 August, 2017 had been served upon the Appellant on 12 September, 2017 through an envelope that was sent by speed post on 1 September, 2017, bearing no. ER924187517IN. 19. Thus, what has to be examined in this Appeal is whether the order dated 29 August, 2017 had actually been served upon the Appellant on 12 September, 2017 as contended by the Department or on 6 August, 2018 as contended by the Appellant. 20. The contention of the Department that the order dated 29 August, 2017 was served upon the Appellant on 12 September, 2017 is based only on the service of an envelope sent to the Appellant by speed post bearing no. ER924187517IN on 12 September, 2017. The Appellant has categorically stated that the envelope sent by speed post bearing no. ER924187517IN did not contain the order dated 29 August, 2017. According to the Appellant, the said envelope contained a letter dated 1 September, 2017 sent by the Superintendant, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office and this letter bore no. C.No.: CE-5/02/Vedanta/Royalty/17-18/1740. 21. In order to ascertain the veracity of the facts stated by the Ap .....

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..... 2017 was subsequently inserted in between the two dates 31 August 2017 and 4 September 2017. 23. This apart, whereas all the earlier speed post numbers on the relevant page and the other pages from date 23 June 2017 upto 20 September, 2017 begin with ER90...., the speed post number of the envelope relating to date 1 September, 2017 begins with ER92.... 24. The fact that the envelope bearing Speed Post No. ER924187517IN was sent by the Superintendant, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office and not from the Division Office from where the order was passed by the Assistant Commissioner is admitted by the Department, as the Assistant Commissioner in his affidavit has made a categorical statement that the said envelope was sent by speed post by Range-II (Balotra), Jodhpur. The Assistant Commissioner has, however, in his affidavit made an attempt to explain this fact by stating: The dealing hand has informed that the said Order-in-Original was given by hand to the concerned officer of Balotra Range for service to the assessee. The said order was then sent by Balotra Range through speed post ER924187517IN, which was then informed to the dealing hand, .....

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..... t by speed post. This practice is also belied from the fact that the show cause notice that was sent to the Appellant was dispatched from the Division Office and even the order subsequently sent by speed post to the Appellant on 6 August 2018 was dispatched from the Division Office. This apart, the alleged said practice is not supported by any documentary evidence. In fact, not a single instance has been pointed out when an order passed from the Division Office was sent by speed post by the Range Office. 28. The affidavit of the Assistant Commissioner, as it transpires, is based merely on the oral statement made by the dealing assistant of the Division Office after a period of one year and eight months that the envelope was given by hand to an officer of the Balotra Range for service upon the Appellant. 29. Shri Mohan Das, Superintendant in Division-C, Jodhpur has made an attempt to justify the sending of the letter from the Range Office by stating that the stickers were not available in the post office from where the Division Office sends the letters and, therefore, it was given by hand to an officer of Balotra Range office for service upon the Appellant. This explanation cannot b .....

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..... fice regarding service of the said letter dated 1 September 2017, which the Appellant had categorically stated was sent by the Range Office in an envelope bearing No. ER924187517IN. Sufficient opportunity was given to the Department to explain this issue. If the Contention of the Appellant was not correct, the Department would have placed evidence to show how this letter dated 1 September 2017 was served upon the Appellant. In the absence of any denial of the specific statement made by the Appellant and in the absence of any documentary proof to substantiate how the letter dated 1 September, 2017 bearing no. C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 was actually served upon the Appellant, there is no reason not to accept the version of the Appellant that it was this letter dated 1 September, 2017 that was actually contained in the envelope bearing no. ER924187517IN, that was sent to the Appellant, which envelope was received by the Appellant on 12 September, 2017. 33. The assertion in the affidavit of the Assistant Commissioner that the envelope with speed post bearing no. ER924187517IN was actually dispatched from the Range Office to the Appellant only supports the case of the App .....

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..... (Appeals) to have apprised the Appellant that the order had been served on 12 September 2017 and given him an opportunity to explain, if the Appeal was to be dismissed on the ground of limitation but no opportunity was provided to the Appellant and an order was straight away passed dismissing the Appeal as being time barred. 38. Thus, for all the reasons stated above, the contention of the Appellant that the order dated 29 August 2017 was for the first time made available to the Appellant on 6 August 2018 has to be accepted. If that be so, then the appeal filed by the Appellant before the Commissioner (Appeals) on 4 September 2018 was within of 60 days time stipulated in Section 35 (1) of the Act. The order passed by the Commissioner (Appeals), therefore, dismissing the Appeal as being barred by time cannot be sustained and the appeal has to be heard by the Commissioner (Appeals) on merits. 39. The order dated 1 January 2019 passed by the Commissioner (Appeals) is, accordingly, set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal filed by the Appellant on merits expeditiously and preferably within a period of three months from the date a copy of t .....

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..... gainst the Order-in-Original dated 29 August, 2017 for the reason that it was filed beyond the period stipulated in Section 35F of the Central Excise Act, 1944. In the appeal form, the appellant contended that it received the Order-in-Original on 6 August, 2018. The Commissioner (Appeals) doubted this contention of the appellant as according to him there was an abnormal delay. The Commissioner (Appeals), therefore, sought a report from the adjudicating authority as to the correct date of actual delivery of the impugned order with documentary proof. The adjudicating authority, as has been noticed by the Commissioner (Appeals) in paragraph 6.1 of the order, informed that the Order-in-Original was issued on 29 August, 2017 and it was sent by Speed Post No. ER92418751IN (should be ER924187517IN) dated 1 September, 2017 to the appellant and the same was not returned back as per their office record. The Commissioner (Appeals) also noted that the Postal Department informed, on a query made by the Commissioner (Appeals) that the aforesaid letter was actually delivered to the appellant on 12 September 2017 by the Branch Post Office, Bandra (Kawas). 2. Shri Alok Aggarwal, learned Counsel of .....

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..... d in a different style when compared with the other entries on the said page. 8. As noticed above, the appeal was dismissed by the Commissioner (Appeals) only for the reason that since the Order-in-Original was served upon the appellant on 12 September 2017, the appeal was filed beyond the period provided in Section 35F of the Central Excise Act. 9. In this view of the matter, the contents of the despatch register and the speed post register assumes importance. 10. In view of the averments made in the affidavit filed by the two lawyers, it is considered necessary to direct the Assistant Commissioner in charge of the Adjudication Cell to file his personal affidavit in response to the affidavit of the two lawyers which is at page No. 502 and 503 of this appeal. The respondent shall also place the original despatch register and the speed post register on 10 May, 2019. The registers shall be brought by a responsible officer of the Department in a sealed cover. It is made clear that no tampering of the record shall be undertaken by the respondent in the register. List on 10 May, 2019 on the top of the board. 43. In compliance of the direction of this Tribunal, the Assistant Commissioner .....

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..... ew that the detailed enquiry is required to be done in regard to the speed post register being maintained by the Range Office Balotra, and also the Receipt register of the appellant which will only disclose the truth regarding the alleged manipulation of records. (Dictated and pronounced in the open Court) (BIJAY KUMAR) MEMBER (TECHNICAL) As divergent views have been expressed in the two separate orders, it has been become necessary to place the matter before the President for referring the matter to a third Member to resolve the following issue; I. Whether, for the reason stated in the order of the President, the order dated 1 January 2019 passed by the Commissioner (Appeals) deserves to be set aside and the appeal be allowed with the directions contained in the order as the Appellant had filed the appeal before the Commissioner (Appeals) within the stipulated period and the appeal is required to be heard on merits by the Commissioner (Appeals). Or Whether a further enquiry is required to be conducted to ascertain whether the Range Officer had dispatched the adjudication order or the letter dated 1 September 2017 by speed post on 1 September 2017, which was delivered to the Appell .....

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..... st, 2018 requested the Adjudicating Authority for providing a copy of the order, since the same was not received by them. A copy of the order dated 29.08.2017 was handed over to them on 06th August, 2018 and also attested copy of the order was received by them on 11th August, 2018 through speed post. Consequently they filed the appeal on 04th September, 2018 before the Commissioner (Appeals). 7. The learned Commissioner (Appeals) on finding that the appeal was filed after a delay of approximately 308 days, sought information from the field formation on the actual date of communication of the order to the appellant. On the basis of a report dated 20.11.2018 of the Adjudicating Authority and also the communication dated 04.12.2018 received from the postal Department Jodhpur, the learned Commissioner (Appeals) concluded that the order dated 29.08.2017 was delivered/communicated to the appellant on 12.09.2017. Consequently, observing that there is inordinate delay of 308 days from the date of communication of the order in filing the Appeal, hence the Appeal has been filed beyond the time period prescribed under Section 35(1) of CEA, 1944, accordingly rejected the appeal. 8. Before the .....

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..... er relating to delivery of the order through speed post on 1st September, 2017 bearing no. ER924187517IN, relied by the Ld. Commissioner(Appeals) in the impugned Order, it is his contention that no doubt the said speed post was received by them from the Range Office, but the content in the envelop was different. It is his contention that the envelope with speed post No. ER924187517IN is of the size 23cm×10cm in which the letter dated 01.09.2017 relating to some other subject addressed to the Appellant by the Range Superintendent was delivered. It is his contention that the Order-in-Original which is of eleven pages legal paper size of cannot fit into the said small size window envelope of 23cm×10cm. This fact is corroborated when the order dated 29.08.2017 was received by them against speed post No. ER956930766IN on 11.08.2018 from the Division Office in an envelope of 27cm×12cm size and the weight is approximately 90 grams with a higher postal charge. Also, he has submitted that the order has not been delivered in accordance with Section 37C of the Central Excise Act, 1944, therefore, the date of communication be considered as 06th August, 2018 hence, the appeal .....

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..... o contain the order dated 29.08.2017, which of eleven pages and legal size paper. Also the postal charges levied for speed post of both letters are different, the second one with higher charge the weight being 90gms, therefore, the order dated 29.08.2017 could not have been dispatched in the envelope containing speed post no. ER9241875719IN, for which minimum speed post charge is levied. 16. Further, I find that the learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department. Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered. 17. I find that the appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a le .....

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..... would not yield any positive result in as much as the register in the Range office would also show the same speed post number. Receipt of the said speed post letter not disputed by the appellant. It is only the content of the speed post letter ER9241875719IN which is in dispute. An examination of the envelopes a man of ordinary prudence would definitely reach to the conclusion that the order dated 29.08.2017 could not have been dispatched in the envelope mentioning the speed post No. ER9241875719IN dated 01.09.2017. 22. As far as the role of the officers of the department is concerned in furnishing the report, it is not clear as to what short of verficaion conducted and whether it is ascertained the order dated 29.8.2017 remained to be dispatched at the Range office or at the Division office itself; the affidavit also does not disclose about the lapse relating to delivery of the Order. It only tries to explain the procedure followed and responded to the discrepancy pointed out by the Advocates in their affidavit. Thus, it remains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant is concerned, they should not made to s .....

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